Serbia Justice Functional Review

Summary with Recommendations

b. Quality of Services Delivered

As outlined in the Performance Framework, the quality of service delivery covers a range of dimensions ranging from quality of legislation to quality in case processing, decision-making, and appeals. The integrity of the system is also a dimension of quality in the eyes of users. Poor quality has significant implications for efficiency of service delivery as well as for the access to justice services.

Main Findings

The poor quality of legislation in Serbia causes a range of problems for the courts.. Lack of precision in legislative drafting creates ambiguity which is then exploited by parties. Overlapping and conflicting laws cause inconsistency of practice, while gaps in the law leave judges with little guidance. In all, 21 percent of judges and 19 percent of lawyers report poor quality legislation as the main reason for the poor quality of court services. Only 13 percent of judges and prosecutors considered Serbian laws to be fair and objective.

Deficiencies in the policymaking and legislative process perpetuate these problems. There has been a proliferation of new legislation in recent years, often developed without policy analysis, and with limited analysis or buy-in from the stakeholders responsible for their implementation. Ad hoc working groups are convened by the MOJ to consider and draft each new law, and their organizational methods are haphazard. There are too many working groups, and the deliberative process is time-consuming without producing the requisite quality of drafts. Working groups tend to debate concepts rather than conduct analysis based on policy criteria, and they tend not to rely on data to inform decision-making. They do not sufficiently consider the financial and operational implications of proposed legislation, as evidenced by a lack of policy analyses or fiscal impact analyses. Consultation processes are perfunctory. Legislation is routinely passed by the National Assembly under emergency procedures.

Many laws have been ‘stillborn’, unable to be effectively implemented and requiring a new working group to start over again. This has created a constant and unproductive ‘churn’ of reform.

Following the enactment of new legislation, there has been limited outreach and training to embed new behaviors. In recent years, many laws have been ‘stillborn’, unable to be effectively
implemented and requiring a new working group to start over again.
This creates a constant and unproductive ‘churn’ of reform.
Professionals have little time to apply the new legislation before
they are revised. Many judges stall their decisions or continue to
apply old legislation while waiting for appellate courts to provide
guidance on new legislation. There is also evidence of reform
fatigue, which is concerning at the outset of the Chapter 23 process.
Legislative reform will continue through the accession process, but the quality of the working group process should be enhanced to prevent the Chapter 23 accreditation process from becoming a merely box-ticking exercise.

When disputes arise, the application of the law is inconsistent across the country. More than 80 percent of judges, prosecutors and lawyers express concerns about inconsistent or selective interpretation of laws and inconsistent jurisprudence. Process Maps highlight that the ‘law in practice’ differs from the ‘law on the books’ in certain cases and at certain locations.

More than 80 percent of judges, prosecutors and lawyers express concerns about inconsistent or selective interpretation of laws and inconsistent jurisprudence.

Current arrangements for case processing present several challenges in terms of quality. The
system lacks a standardized approach to routine aspects of case
processing. There are no checklists, standardized forms or templates
for routine aspects of case processing, nor is there a consistent
approach to drafting routine documents, such as legal submissions,
orders, or judgments. Meanwhile, there are few examples of specialized case processing for the types of cases that often warrant a tailored approach. Certain types of cases, such as small claims, complex fraud and gender-based violence, can tend to get ‘stuck’ in the system because they lack specialized case processing practices.

Monitoring of deferred prosecution and alternative sanctions is inconsistently applied across the territory, largely due to the limited geographic reach of the Commissioner. This undermines the principle of equality before the law.

In criminal cases, the quality of decision-making by judges and prosecutors varies. Some innovations are showing promise, including the use by prosecutors of deferred prosecution31 and plea
bargaining. In deferred prosecution cases, arrangements to
implement and monitor sanctions remain weak, causing prosecutors
to rely disproportionately on cash payments as sanctions rather than
more proactive rehabilitative measures, such as community work or
psycho-social treatment. Monitoring is also inconsistently applied
across the territory, largely due to the limited geographic reach of
the Commissioner, undermining the principle of equality before the
law. Plea bargaining procedures could be simplified by giving greater
autonomy to Deputy Prosecutors. Sentencing appears inconsistent,
and many stakeholders report that it is overly lenient, and
prosecutors could play a more constructive role in compiling data on sentencing practices and trends and recommending sentences accordingly. Alternative sanctions could be strengthened by supporting the arrangements for implementing and monitoring sanctions. Alternative sanctions should be particularly encouraged in Misdemeanor Courts, where deferred prosecution and plea bargaining do not occur and the prospects for rehabilitation for minor offenses are high.

More broadly, the Serbian judicial system struggles to fully comply with ECHR requirements, as evidenced by the large caseloads in Strasbourg. Non-compliance tends to be found in a limited number of case types, highlighting specific problems relating to inconsistent application of the law and non-enforcement of the final decisions against state-owned enterprises. It thus appears that the bulk of Serbia’s non-compliance relates to financial complaints against public entities, rather than structural problems in the judicial system. Friendly settlements offer some solution here. In an attempt to comply with the ECHR right to trial within a reasonable time, recent procedural reforms now enable parties to pursue a separate cause of action for delayed proceedings. These reforms are well-intentioned but run a high risk of producing unintended, or even perverse, consequences. Their implementation should be monitored closely and adjustments may be required.

Without plausible explanation, some courts exhibit appeal rates and reversal rates that are double those of the court adjacent to it.

The appeals system is at the heart of Serbia’s problems in terms of quality of decision-making. Appeal rates are very high on average, as are reversal rates32 on appeal. Rates also vary markedly across
court types, case types, and court locations. Without plausible
explanation, some courts exhibit appeal rates and reversal rates that
are double those of the court adjacent to it. Appeals from Basic
Courts to Higher Courts (known as small appellation) are not well
monitored in the system and, upon analysis, are particularly
alarming. The perceived unfairness of the system, combined with its
lack of uniformity and consistency, encourages court users to appeal. Attorney incentives may also play a hand in driving up appeals. At the same time, levels of trust in the appellate system among court users are low. On a positive note, recent procedural amendments to reduce successive appeals (known as the ‘recycling’ of cases) seem to be working. Nonetheless, appellate judges (notwithstanding their lighter caseloads) continue to remand cases back to the lower jurisdiction for re-trial more often than they are required to, rather than substituting their own judgment. Excessive remands duplicate workloads, inflate case numbers and perpetuate inconsistent practices by failing to provide adequate guidance to lower courts. The SCC plans to improve uniformity in the application of the law through a range of measures, including Certification Commissions. These efforts should be prioritized and augmented with a suite of basic quality-enhancing measures, which together could reduce appeal rates over time.

In addition to paying bribes, around 19 percent of users report ‘pulling strings’ to influence the courts.

Meanwhile, corruption remains a challenge for the Serbian judiciary. Serbia lags EU Member States
and neighboring countries on all comparative indices of perceived
corruption in the judiciary. Court users admit that they engage in
corruption to advance their cases.33 Bribery of court staff appears to
be more common than bribery of judges, who likely rely on more
subtle means. In addition to bribes, around 19 percent of users
report ‘pulling strings’ to influence the courts. Such informal means are more often used to affect the procedure rather than the outcome, suggesting that improvements in transparency and efficiency in case processing would reduce opportunities for malfeasance. Gift-giving is also common and goes largely unchecked. Surveys indicate that the perceived prevalence of corruption is declining across the system. However, in Misdemeanor Courts, public trust and confidence is falling.

25 percent of judges, 33 percent of prosecutors and 56 percent of lawyers report that the Serbian judicial system is not independent.

Perceptions of judicial independence in Serbia remain low. A significant portion of judges (25
percent) and prosecutors (33 percent) report that the judicial
system is not independent, compared with 50 percent for the public
and business sector, and 56 percent of lawyers. The same view is
reflected in Serbia’s poor rankings in terms of judicial independence
on a range of global indices. Notably, perceptions of judicial
independence have worsened since 2009, which reduces the credibility of the system and users’ trust and confidence in it.

Recommendations and Next Steps

Recommendation 9:
Improve the organizational methods of Working Groups that develop draft policy and legislation relating to the judiciary. Require that working groups identify policy objectives and options, analyze fiscal and operational impacts of policy options, and prepare detailed implementation plans for the rollout of reforms.34

Ensure standard terms of reference for working groups, with accompanying checklists for Chairs of working groups. Ensure that working groups articulate precise policy objectives and criteria. (MOJ – short term)

Require that working groups analyze the causes for previous policy failures using system data, surveys and assessments of gaps between the ‘law on the books’ and the ‘law in practice’. Require that all working groups conduct fiscal analyses and operational analyses of proposed reforms and policy options. Base recommendations on evidence. Ensure that draft legislation recommended by each working group includes an estimated breakdown of the costs of implementation. (MOJ – short term)

Ensure that each working group includes a specialist in legal drafting to ensure consistency and completeness of draft legislation. Conduct training on legislative drafting and interpretation. (MOJ, JA – medium term)

Prepare implementation plans for the dissemination and rollout of new legislation and policy, and engage the Judicial Academy to deliver comprehensive training on new legislation for judges, prosecutors and court staff. (MOJ, JA – short term)

Disseminate information about reforms through the media and on the websites of courts and the MOJ to inform citizens and court users. (MOJ, SCC – short term)

Recommendation 10:
Implement basic quality-enhancing measures. Standardize formats for routine procedures in Courts, including through the development of templates and checklists.35 The CCJE recommends that simplified and standardized formats for documents be adopted to initiate and proceed with court actions.36 Initial forms can be created in the short term at relatively low cost. Training can be incorporated into existing programs.

Develop and require courts to use standardized templates and forms for routine procedures and processes, applying lessons from the Vrsac Basic Court. (SCC – medium term)

Provide training on their use to judges, prosecutors, and court staff to enhance consistency in case processing. (SCC, JA – medium term)

Recommendation 11:
Develop pilots in Misdemeanor, Basic and Higher Courts for specialized case processing departments, including a specialized small claims department in Basic Courts with streamlined procedures.37 These recommendations can be implemented in the medium term for relatively low cost.

Assess the feasibility of establishing small claims departments inside Basic Courts. If successful, start with a number of pilot Courts, and monitor results. Support departments with incentives, such as awards and recognition or consideration in evaluation or promotion, to attract high-quality judges and staff. Develop streamlined procedures and lay guides that could be followed by self-represented litigants. (MOJ, HJC, SCC – short term and ongoing)

Create a working group to identify what kinds of cases could benefit from specialized case processing, including for example tax and customs cases in Misdemeanor Courts and gender-based violence and fraud in Basic and Higher Courts. Analyze lessons learned from the Commercial Courts. (MOJ, HJC – medium term)

Recommendation 12:
Implement and augment existing SCC plans to promote uniformity and clarity of court decisions.38 This would enhance quality and perceived fairness in line with CCJE and the Magna Carta of Judges’ recommendations for improved quality, accessibility, and clarity of decision-making. Consolidating cases are for the short term while other items are for the medium term. All recommendations require relatively minimal cost.

Provide guidance and training to judges at both first-instance and appellate levels on how to join related cases. (SCC, JA – short term)

Develop a more standardized approach to judgment writing and train judges on how to apply this approach. (SCC, JA – medium term)

Establish a series of colloquia between Court Presidents to discuss emerging issues in law and practice. (SCC – short term)
Establish forums of institutional court users at the local level of each Basic Court (police, prosecution, social welfare, lawyers etc.). Meet periodically to ensure effective coordination of cases (applying lessons from the Zrenjanin Basic Court). (SCC – short term)

Recommendation 13:
Improve statistical reporting of appeals (including data relating to decisions confirmed, amended or remanded back to the lower court). Combine analysis of the results with a package of training and incentives for courts and judges to promote quality in decision-making.39 The COE recommends that steps should be taken to deter the abuse of post-judgment legal remedies. Improved enforcement will discourage appeals by reducing incentives for attorneys and/or parties to delay final judgment.40 Recommendations can be pursued in the medium term at relatively low cost.

Align statistical data on appeals from Basic Court decisions to enable tracking of small and large appellation and analyze variations. Link the Courts’ case management systems to allow cases to be tracked through all appeals, related cases and closure. (SCC, MOJ – medium term)

Consider the appeal record of individual judges and prosecutors in the evaluation and promotion process. (HJC, SPC – medium term)

Adjust the productivity norms of appellate judges to reward those who replace a lower court decision with their own judgment rather than remand it back to the lower court for retrial. Provide training to appellate judges on the implementation of recent procedural reforms requiring judges to amend decisions at the second appeal. (SCC, JA – medium term)

Prepare and deliver training on issues that drive up appeals, including issues of concern under the ECHR41. (SCC, JA – short term)

Agree to friendly settlements between the state and parties in mass resolution of cases before the European Court of Human Rights. (MOJ – medium term)

Recommendation 14:
Develop a high-profile campaign to enhance quality and combat corruption in administrative services in Courts, including the development and monitoring of integrity plans.42 Creating integrity plans, standards, and a task force can occur in the short term, with other recommendations in the medium term, all at relatively low cost. Monitoring, training, and public awareness should be an on-going process.43

Prepare and deliver training for judges, assistants and court staff on the purpose and content of court integrity plans. Develop integrity plans for all courts and PPOs. Disseminate existing rules on gift giving and provide relevant training. (ACA with HJC, Courts, PPOs – short term)

Create a task force to consider performance and integrity improvements in Misdemeanor Courts for which public trust and confidence has been reduced significantly since 2009 and which impact large numbers of litigants. (SCC – short term)

Continue to conduct periodic surveys focusing on court user experiences of corruption. Strengthen the survey methodology and expand the survey to provide more detailed and robust findings to inform future anti-corruption reforms within the judiciary. (Courts, ACA – medium term)

Target interventions to deal with the most commonly reported forms of corruption, such as petty bribery of court staff. (HJC, SCC, MOJ – medium term)

Develop public relations information on the websites and in brochures at the courts regarding the law and policy on gift giving. (HJC, SPC – short term)

Recommendation 15:
Enhance the capacity of the system to implement and oversee alternatives to prosecution in all locations to ensure equal treatment of defendants across Serbia.44 Recommendations can be accomplished by the medium term. Adding staff and enhancing SAPO will require moderate costs, while the other efforts are relatively inexpensive.

Consider how recently-enacted Misdemeanor Orders could be used to impose alternative sanctions other than fines. Provide training for Misdemeanor Court judges on the use of alternative sanctions. (Misdemeanor Courts – short term)

Expand the number of Offices of the Commissioner to all 26 Higher Court regions to oversee the implementation of deferred prosecutions. Add support staff in Commissioner’s offices to enable monitoring of fulfillment of the terms of deferred prosecution cases, particularly in rehabilitative sanctions, such as treatment and community service. (Office of the Commissioner; RPPO – short to medium term)

Streamline the plea bargaining process by providing more autonomy to Deputy Prosecutors to offer plea bargains for cases meeting criteria set by the RPPO. (RPPO – medium term)

Design and deliver a training program for Deputy Prosecutors on the processing of plea bargaining and deferred prosecution cases. (RPPO, JA – medium term)

Expand the use of alternative sanctions, particularly in misdemeanor cases. (Misdemeanor Courts, Office of the Commissioner – medium term)

Add data collection concerning deferred prosecution and plea bargains to the prosecutors’ automated system (SAPO): include number of deferrals and pleas offered, the criminal offense, location, and reasons for any rejections by courts of offered plea bargains. (RPPO – medium term)